POPE et al. v. HUTH et al., 14 Cal. 403

Baldwin, J. delivered the opinion of the Court—Field, C. J. and Cope, J. concurring. The Appellants received, at London, on the 23d June, 1856, a letter from, the Respondents, inclosing the following order: “ Messrs. F. Huth & Co. Gentlemen :—Please hold to the order of Messrs. Wm. Pope & Sons, of Boston, (£500) five hundred pounds sterling, of insurance, effected on cargo per bark Elvira, and oblige, Tour obedient servant, Lubeck & Co.” To which letter Huth & Co. reply as follows: “ London, June 24th, 1856. Messrs. Wm. Pope & Sons, Boston, U.

S.—Gentlemen : We are in receipt of your letter of the 6th instant, concerning an order of Messrs. Lubeck & Co. of San Francisco, upon us, for five hundred pounds, to be paid out of average money per Elvira. In reply, we have, however, to inform you, that Messrs. Lu-beck & Co. have not yet forwarded such documents as will enable us to recover said loss from the underwriters, and wo must, therefore, defer the payment of the above order until we are in receipt of the necessary funds. As soon as such is the case we will inform you, and in the meanwhile We are, etc. etc. Fred.

Huth & Co.” The subsequent correspondence shows that the Appellants received an order from Lubeck & Co. countermanding the credit to Respondents, at the same time, with documents relating to the Elvira, and that they collected the insurance by means of those papers, and disposed of it according to the orders of Lu-beck & Co. Upon these facts, and the additional fact of a demand by the plaintiff for the payment of this sum and refusal, the question of the liability of the defendants in this action rests. We think it not important to consider whether this order is technically a bill of exchange.

But we regard it as an equitable assignment of the funds in the hands of Hath & Co. to the payees; and Huth & Co. having notice of this assignment, would be liable to them for the amount, even in the absence of an express promise to pay it. It seems, however, that the letter of Huth & Co. contains, if not an express, certainly an implied, promise, to pay Pope & Sons. “ We must defer the payment of the above order until we are in receipt of the necessary funds.” This language, taken in connection with the receipt and detention of the order, seems equivalent to an express promise to pay in the event indicated.

The case of Morton v. Naylor, (1 Hill, 583,) is in point. In that case an order was drawn by a landlord on a tenant, to pay one Warner the quarterly rents as they might become due during the year, which order was accepted by the tenant. It was sought to be revoked after acceptance. But the Court said that could not be done. “ The order to Morgan was an equitable assignment of the rents in question to Warner, with notice to Morgan, who was bound to pay it according to the order, whether he had accepted or not.” The cases are entirely decisive. (Israel v. Douglass, 1 H.

Black. 242.) Here, Lord Loughborough said, in respect to an order like the one in question : “ This debt is, with the consent of the parties, assigned to the plaintiff, (the payee,) Douglass, (the drawee,) has notice of it, and assents, by which assent he becomes liable to the plaintiff.” This case was recognized and acted on in Weston v. Baker, (12 Johns. 279, 289.) Yeates v. Groves, (1 Ves. Jun. 280,) is still more nearly in point. It held that an order, without acceptance, was an assignment, and that the drawee having notice merely, might pay it, even as against the bankrupt assignee of the drawer.

Ex parte Alderson, (1 Mad. 39,) is also exactly in point. In Lett v. Morris, (4 Sim. 607,) such an„order was enforced as an assignment, though the drawee refused to accept. (See, also, Clark v. Mauran, 3 Paige, 373; Bradley v. Root, 5 Id. 642, 641, and the cases there cited.) I refer to cases in chancery, to show that an order is, per se, an equitable assignment to the payee, of the debt due from the drawee to the drawer. Our own rules at law as to enforcing such an assignment are well known. We give it the same effect as would a Court of Chancery. (See, also, Pierce v. Robinson, and Wheatley v.

Strobe, in this Court, at the last January Term.) It is not at all material whether the fund on which the plaintiff held the order was in the hands of Huth & Co. when the order of Lubeck & Co. was drawn. An equitable assignment may as well be made of a fund to come into the hands of the drawee by virtue of an agency, as of the money actually in hand. If A draws on bis broker for money to come from sales of his crop in the hands of, or shipped to, his broker, it is as good an assignment as if the money were already in the hands of the latter.

Wo infer from the agree'd statement that Huth & Co. had agreed to collect this insurance money for Lubeek & Co. previously to the dispatch of the papers, and, therefore, it is not important to consider, whether, if this agreement of theirs had preceded their agency for Lubeek & Co. they would be bound; Lubeek & Co. at the time of the commencement of the agency, giving them contrary orders to those contained in the order in favor of Pope & Sons.

No point is made as to the effect of this order, because it does not recite a consideration; nor has it been argued that it does not show a contract in favor of Pope & Sons, but is only a mandate for the benefit of Lubeek & Co. which might be revoked by any subsequent direction they chose to give as to the mode of drawing the fund. We have not considered this point, if, indeed, there be anything in it; but confine ourselves to a disposition of the case upon the points assigned and argued. Judgment affirmed.